California Supreme Court okays standing for Prop 8 defenders

by on November 17, 2011  •  In Uncategorized

In an unanimous opinion, the California Supreme Court ruled that Prop 8 defenders should have standing to defend the law in court when both the Governor and the Attorney General have declined to do so. The court held that in a situation in which the officials were not defending a voter-passed law,

It would clearly constitute an abuse of discretion for a court to deny the official proponents of an initiative the opportunity to participate as formal parties in the proceeding, either as interveners or as real parties in interest, in order to assert the people’s and hence the state’s interest in the validity of the measure and to appeal a judgment invalidating the measure.

Attorneys for the plaintiffs challenging Prop 8 declared a version of victory, despite their prior arguments against standing for the proponents, hoping that by not contesting the point further, they can nudge the Ninth Circuit to move immediately to a ruling on the merits.  The plaintiffs could have returned to the federal court and tried to convince it to reject the reasoning of the state court. But they apparently are trying to cut their losses with a new press message that this decision "frees up" the Ninth Circuit to address the merits.

This tactical calculation is correct. It is still up to the Ninth Circuit to consider the state supreme court's advisory opinion and then issue its own ruling on standing under federal law. But plaintiffs' lawyers have no hope of persuading the Ninth Circuit to ignore a unanimous decision written by the state court's Chief Justice.

UPDATE Nov. 18 – The parties have been ordered to submit briefs to the Ninth Circuit by December 2 on the correctness of the California Supreme Court decision.

And it's a good bet that this panel of Ninth Circuit judges will uphold the District Court decision ruling Prop 8 to be unconstitutional (although possibly on narrower grounds applicable only to California). Such a decision could come out within six months, perhaps even sooner, since oral argument has already been held.  The next stop then is either en banc review (by a panel of more than three Court of Appeals judges) or a petition for review by the  U.S. Supreme Court by whichever side loses.

On the equities of the standing issue, I think the California Supreme Court's decision is correct. It is a weird, perhaps unique, situation for both the Governor and Attorney General to decline to defend a voter-passed initiative, so my bet is that there will be no floodgates opening after this decision. (The most likely impact is that state officials will remain in such cases and appeal rulings of unconstitutionality, even if the officials believe a ruling to be correct, so that the cases can proceed to appellate courts.) 

Bottom line, I agree with the state court that voter-enacted laws should be defended in a litigation challenge. I think it's terrible policy to subject individual liberties to popular vote, but once it is done (and this happens in a lot of states besides California), the process of full judicial review should ensue.


One Response to California Supreme Court okays standing for Prop 8 defenders

  1. Jay November 18, 2011 at 8:55 AM

    I read the entire decision by the California Supreme Court. It seems very well reasoned. I agree that vote-initiated laws should be defended by someone when challenged.

    However, my gripe is with the Ninth Circuit’s referring the question to the California Supreme Court, and giving them so much time to render a decision. They have wasted ten months in which Californian lesbian and gay couples have been deprived of a constitutional right.

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